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Bloom v. Casella Construction, Inc.

Supreme Court of New Hampshire, Belknap

October 16, 2019

EILEEN BLOOM
v.
CASELLA CONSTRUCTION, INC.

          Argued: March 13, 2019

          Shaughnessy Raiche, PLLC, of Bedford (Brian C. Shaughnessy on the brief and orally), for the plaintiff.

          Morrison Mahoney LLP, of Manchester (Joseph G. Yannetti and Brian A. Suslak on the brief, and Mr. Suslak orally), for the defendant.

          HANTZ MARCONI, J.

         In this tort action, the plaintiff, Eileen Bloom, appeals the order of the Superior Court (O'Neill, J.) granting summary judgment to the defendant, Casella Construction, Inc. (Casella), ruling that the defendant did not owe the plaintiff a duty of care and was not otherwise liable to the plaintiff pursuant to Section 324A of the Restatement (Second) of Torts. We affirm in part, reverse in part, and remand.

         The record supports the following facts. On the morning of December 30, 2013, the plaintiff drove to Dartmouth-Hitchcock Medical Center (DHMC) in Lebanon, where she worked as a nurse. She parked her vehicle in an employee parking lot, exited the vehicle, and took approximately two steps before she slipped and fell on ice. According to the plaintiff, there was "no sand [or] ice melt applied to the lot," despite that it had snowed "maybe" a couple of inches the night before and some of the snow had melted and refrozen overnight in the parking lot. As a result of her fall, the plaintiff suffered injuries that required surgery.

         At the time of the plaintiff's accident, DHMC had a "Snow Plowing Agreement" with Casella (the contract) whereby Casella was to "provide certain services, including the equipment and labor for snow removal services" and agreed "to coordinate with [DHMC] to provide all services in accordance with" the "Snow Plowing Guidelines" (guidelines) attached to the contract. The guidelines stated that: "[s]alting and sanding will be done by DHMC unless assistance is asked and direction given by the DHMC Grounds Supervisor or his designee"; "[s]alt is applied . . . at the start of plowing operations as an anti-icing agent and during a storm to meet the objectives of this plan"; Casella "shall apply salt and/or sand only as directed by the DHMC Grounds Supervisor or his designee"; "[e]mployee lots shall be kept plowed as clear as possible and accessible at the start of each shift change"; and "[g]enerally salt is applied to parking lots prior to or at the start of a storm and after storm cleanup or as directed by DHMC Grounds Supervisor or his designee."

         The plaintiff sued Casella, claiming that "[a]s an entity contractually obligated to provide winter maintenance to the parking lot in question, and in particular to treat accumulations of winter precipitation," Casella had a duty to "employ reasonable care to maintain the premises in a reasonably safe condition for those such as the plaintiff who used the premises for their intended purposes." She alleged that Casella breached its duty and "was negligent and careless in failing to maintain the premises in a reasonably safe condition." According to the plaintiff, "[n]o claim was made against Dartmouth Hitchcock, since her employer enjoyed statutory immunity for workplace injuries." See RSA 281-A:8 (2010).

         Casella moved for summary judgment on the ground that it owed no duty of care to the plaintiff. Following a hearing, the trial court granted the defendant's motion. Subsequently, the court denied the plaintiff's motion for reconsideration, and this appeal followed.

         On appeal, the plaintiff asserts that the trial court erred in granting summary judgment on the ground that the defendant owed her no duty of care. She argues that there are several reasons why a duty exists in this case: mutuality of interest between the plaintiff and DHMC; the rule set forth in Hungerford v. Jones, 143 N.H. 208 (1998); and public policy. She also argues that Section 324A of the Restatement (Second) of Torts provides for liability in these circumstances. We address these in turn.[1]

         In reviewing a trial court's ruling on a motion for summary judgment, we consider the evidence, and inferences properly drawn from it, in the light most favorable to the nonmoving party. See Sabinson v. Trustees of Dartmouth College, 160 N.H. 452, 455 (2010). We affirm a trial court's decision if our review of the evidence discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Christen v. Fiesta Shows, Inc., 170 N.H. 372, 375 (2017). We review the trial court's application of the law to the facts de novo. Id.

         To recover for negligence, the plaintiff must demonstrate that the defendant owes a duty to her, that the defendant breached that duty, and that the breach proximately caused injury to her. See Lahm v. Farrington, 166 N.H. 146, 149 (2014). Absent a duty, there is no negligence. Christen, 170 N.H. at 375. Whether a duty exists in a particular case is a question of law. Id.

         The plaintiff first argues that "[t]here was sufficient mutuality of interests between [her] and her employer for the plaintiff to stand in the shoes of her employer and establish a relationship of privity warranting the imposition of a duty." A duty generally arises out of a relationship between the parties. Sisson v. Jankowski, 148 N.H. 503, 505 (2002). While a contract may supply the relationship, ordinarily the scope of the duty is limited to those in privity of contract with one another. Id. Because there is no dispute that the plaintiff was not a party to the contract between DHMC and Casella, it follows that she is not in privity of contract with Casella. Rather, the plaintiff asserts that, as an employee of DHMC, she and DHMC "have a mutual interest in avoiding workplace injuries" - her interest being "the avoidance of injury" and DHMC's "economic interest is avoidance of the costs of on-the-job injuries" - and that given this "mutuality of concern, . . . it is not fair to completely disown the concept of legal privity as between employer and employee." Casella counters that "[a]bsent any evidence of intent to benefit third parties like [the plaintiff], her 'mutuality of interests' argument must fail as a matter of law, and any claims of implied privity were properly rejected by the Trial Court."

         We agree with the defendant that the trial court properly rejected the plaintiff's "mutuality of interests" argument. As the trial court reasoned, "nothing in the plain language of the Contract indicates that DHMC's intent was to protect its employees from workplace injuries," and, "even if that was DHMC's underlying intent, there is no indication that Casella was aware that a benefit to third parties was contemplated by DHMC, which would be required to impose liability on Casella for injury to third party beneficiaries." See Spherex, Inc. v. Alexander Grant & Co., 122 N.H. 898, 903 (1982) (explaining that "a third-party beneficiary relationship exists if the contract is so expressed as to give the promisor reason to know that a benefit to a third party is contemplated by the promisee as one of the motivating causes of his making the contract," and noting that "a promisor owes [a duty] to an intended third-party beneficiary" (quotation, brackets, and ellipsis omitted)); Brooks v. Trustees of Dartmouth College, 161 N.H. 685, 697-98 (2011) ...


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